Rapport définitif - Rapport No. 281, Mars 1992

1. 39. The Committee examined this case and presented an interim report to the Governing Body in February 1991, which approved it at its 249th Session (see 277th Report, paras. 448-468); it requested both parties to provide further information on the legal provisions concerning the settlement of disputes in the public service and on the outcome of a review of civil service conditions, released in early 1991.
2. 40. The Government submitted its further observations on 17 July 1991. The complainants did not present their comments in spite of having been invited to do so.
3. 41. The United Kingdom has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84) in respect of Hong Kong. It has declared applicable to Hong Kong the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) with modifications, the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Labour Relations (Public Service) Convention, 1978 (No. 151) applicable without modifications.

A. Previous examination of the case

1. 42. The complainants had presented two series of allegations: the remarks made by the Postmaster General on measures that could be taken against workers who intended to take industrial action; and the alleged absence of appropriate collective bargaining and dispute settlement machinery in the public service.
2. 43. On the basis of the evidence before it, the Committee invited the Governing Body to aprove the following recommendations:
   • (a) The Committee considers that the use made of the Letters Patent by the Government in this case is contrary to the principles of freedom of association. It also considers that by threatening retaliatory measures against workers who had expressed their intention to take industrial action in pursuance of their legitimate economic and social interests, the Government interfered in the workers' right to organise their administration and activities and to formulate their programmes, contrary to Article 3 of Convention No. 87. The Committee invites the Government, in the future, to refrain from making such threats.
   • (b) The Committee requests both parties to provide further information on the legal provisions concerning the settlement of disputes in the public service, and on the outcome of the review of working conditions in the civil service, released in early 1991 by the Standing Commission.

B. The Government's further comments

1. 44. In its communication of 17 July 1991, the Government states that it does not accept the finding of the Committee that the use of Civil Service Regulations and Letters Patent by the Government is contrary to Convention No. 87 regarding the principles of freedom of association. The Government believes it has a responsibility to ensure that essential services to the public are maintained. For this purpose, rules and regulations governing the running of the Civil Service are needed. In Hong Kong, the source of power for the Governor to establish and manage the Civil Service is provided under Article XVI of the Letters Patent, which establishes the basic framework for the administration of Hong Kong. The regulations are not intended to deter industrial action organised by unions. Recourse to them is only considered as the last resort to prevent serious disruption of essential public services.
2. 45. When the postal workers threatened to take industrial action in September 1990, which might have the effect of disrupting the delivery of postal services, one of the most essential public services in Hong Kong, the Government considered it its duty to appeal to the staff for their public responsibility. The letter of 12 October 1990 was a sincere plea to drop industrial action. It was not a threat, nor was it an attempt to interfere with the unions' right to organise their activities as provided under Article 3 of Convention No. 87.
3. 46. The Government stresses that the postal staff unions were actually threatening industrial action during the period of consultation, before the Standing Commission on Civil Service Salaries and Conditions of Service was able to complete their review exercise. In the end, the staff unions took industrial action by refusing to perform overtime work during the period 29 November to 1 December 1990. The Government emphasises that the Postmaster General did not interfere with the industrial action, and that no disciplinary action was taken against any staff who took part in it. This reaffirmed the sincerity of the Postmaster General's plea.
4. 47. The Government comments on the Committee's conclusion that " ... the mere fact that such threat existed could be a powerful deterrent for the workers concerned, particularly in view of the broad and discretionary language of Article XVI which provides for severe penalties ... (The Committee) considers that the use made of the Letters Patent by the Government in his case is contrary to the principles of freedom of association" (277th Report, para. 461). It submits that to refrain from making reference to possible sanctions permitted under Article 16 of Letters Patent in future would mean that it had by implication accepted that no action can in future be taken against any staff organising or participating in industrial action, even if situations are serious enough to warrant sanction. The Government reiterates that it must retain the authority to be able to fulfil its responsibility to ensure that essential services to the public are maintained.
5. 48. Concerning the Committee's conclusion that postal services are not essential, the Government argues that in the case of a prolonged postal strike, business activities, particularly those of the direct mail undertaking, could be seriously affected. Old-age allowance and public assistance clients who come to the post office to collect their monthly payment would be inconvenienced. The Government believes that there are circumstances in which it may be valid to adopt a less restrictive definition of "essential services".
6. 49. As regards the machinery for settlement of disputes, the policy of the Hong Kong Government is to settle them, as far as possible, through frank and direct dialogue between management and staff. The Government believes in the well-tested tradition of resolving civil service disputes through sincere discussion and mutual understanding by both parties. In accordance with the spirit of Article 4 of Convention No. 98 and Article 7 of Convention No. 151, it has taken measures appropriate to local conditions to establish channels at both central and departmental levels, to enhance communication. Civil servants are encouraged and are given ample opportunities to make use of these channels to express their views, either individually or collectively through their unions, and to negotiate with management in determining the terms and conditions of employment. This established machinery for consultation and voluntary negotiation has been working well over the years. In the past four years, all Civil Service disputes (a total of 19) have been resolved through frank exchanges and conciliation on both sides.
7. 50. The Standing Commission on Civil Service Salaries and Conditions of Service and the Standing Committee on Disciplined Services Salaries and Conditions of Service have recently completed an overall review, and the results were released in January 1991. In conducting the review on civil service salaries and conditions of service, the two independent bodies invited representations from all grades of the civil service. A total of 740 representations were received. These views were taken into account in the recommendations which have been accepted by the Government and will be implemented as soon as possible.
8. 51. As regards the postal grades, the Standing Commission has recommended, and the Government has approved, the following improvements to salary scales: the starting salaries of both the Postal Officer and Postman grades are revised upwards by two points; one additional salary point is awarded to the Postman grade to reflect their longer conditioned hours of work.
9. 52. After the release of the recommendations, the Post Office management has continued to maintain a dialogue with the unions by holding meetings to explain the recommendations. With a positive and sincere attitude on both sides, the dispute has now been satisfactorily resolved. The management and staff are now once again enjoying a cordial working relationship. The Government would emphasise that this is clear evidence that the existing system has been working effectively in resolving civil service disputes.

C. The Committee's conclusions

1. 53. The Committee takes note of the additional information and comments submitted by the Government and in particular that, through renewed dialogue, the dispute has now been satisfactorily resolved. However, the Committee must recall that the new comments made by the Government cannot convince it to modify its previous conclusion to the effect that the use made of the Letters Patent by the Government is not compatible with the principles of freedom of association. As regards the further observations made by the Government on the nature of postal services, the Committee must refer to its previous comments (277th Report, para. 463) and reiterate that they cannot be considered as essential services in the strict sense of the term. However, since the complainants, although invited to do so on two occasions, have not provided further comments, the Committee considers that this case does not call for further examination.